Virginia Lawyers Weekly

An Abingdon U.S. District Court dismisses a federal inmate’s motion for post-conviction relief under 28 U.S.C. § 2255 based on alleged constitutionally ineffective assistance of counsel.

Defendant first asserts that counsel should have done more investigation before advising him to plead guilty. He asserts that counsel should have filed certain pretrial motions, including motions seeking the following discovery: material discoverable under Fed. R. Evid. 404(b); Brady/Giglio materials; to compel agents to preserve rough notes; the identity of confidential informants; and equal access. Defendant argues that by filing such motions, counsel would have learned that none of the drug baggies recovered in the case bore fingerprints from defendant and that the tapes of the controlled buys included “extremely favorable information” as “there was nothing on the tape to indicate that a drug buy had taken place.” He also asserts that counsel should have obtained a written statement regarding the drug sales.

Trial counsel Harmon’s undisputed affidavit indicates that these pretrial preparation claims have no merit under Stickland/Hill. The attorney who represented defendant initially provided Harmon with extensive materials from the government’s file, pursuant to the government’s “open file” policy. This material included copies of the tapes of the controlled buys, along with transcripts of those tapes, a copy of the Miranda warning given to defendant and a synopsis of statements attributed to defendant and his fiancée. Contrary to defendant’s arguments, the tapes and the statements indicated that defendant discussed prices and drug amounts with the confidential informant, “Larry,” on Oct. 25 and Dec. 15, 2005.

In addition to reviewing the discovery materials provided to him, counsel spoke to the investigating officers regarding defendant’s arrest and information concerning “Larry”; reviewed court records to compile a list of prior offenses for defendants and “Larry”; searched issues surrounding defendant’s confession and his fiancée’s statements; and interviewed each of the witnesses defendant requested for his defense. On Aug. 1, 2006, just before trial, counsel filed a supplemental discovery request for Brady material, specifically requesting additional information about “Larry” and his violation of probation.

Based on the record and Harmon’s undisputed accounts of his representation, I cannot find that defendant has alleged facts on which he could overcome the presumption that defendant’s decisions regarding pretrial investigation and motions were reasonable strategic choices under the circumstances.

Finally, I cannot find that counsel’s failure to move for a continuance of the sentencing hearing was either an unreasonable strategy or that absent this omission, the outcome at sentencing would have been different.

Defendant has failed to state any claims for relief under § 2255.

Government’s motion to dismiss granted.

U.S. v. Blevins (Jones, J.) No. 1:06cr00016, June 17, 2009; USDC at Abingdon, Va. VLW 009-3-346, 12 pp.

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